State of Minnesota, Respondent, vs. Tafari Duffers, Appellant.

State of Minnesota, Respondent, vs. Tafari Duffers, Appellant. A04-1346, Court of Appeals Unpublished, June 21, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1346

 

State of Minnesota,

Respondent,

 

vs.

 

Tafari Duffers,

Appellant.

 

Filed June 21, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. 03057680

 

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant Tafari Duffers appeals from his conviction and sentence for aggravated robbery and felon in possession of a firearm.  Duffers argues that the district court abused its discretion in admitting his prior convictions for impeachment purposes.  Duffers also argues that he was denied the effective assistance of counsel because his attorney incorrectly advised him on the presumptive sentence, and, but for the erroneous advice, he would have accepted the state's earlier plea offer.  Because there was no abuse of discretion and because Duffers is not entitled to the relief requested, we affirm.

FACTS

On August 10, 2003, a man robbed another at gunpoint on a Minneapolis street corner and then left the scene.  Two days later, the victim was working in a fast-food restaurant when he saw the robber come in.  He called the police.  The robber left that restaurant and entered and then left another.  The police arrested him as he left the second restaurant and went back in and searched the area where he had been and found a handgun in a garbage can near the exit he had used.  This man was identified as Tafari Duffers.

The state charged Duffers with aggravated robbery and prohibited person in possession of a firearm from the date of the robbery and prohibited person in possession of a firearm on the date of his arrest.  The latter charge was ultimately severed for trial.

The state offered that, in return for a plea of guilty, it would recommend a sentence cap of 60 months.  Duffers contends that this attorney advised him that the presumptive sentence for the robbery charge was 68 months.  Considering Duffers's criminal history, the correct presumptive sentence was 98 months.

Duffers contends that he relied on his attorney's advice about the presumptive sentence and elected to have a jury trial.  Before that trial, which began on February 20, 2004, the district court ruled that the state would be allowed to impeach Duffers with prior felony convictions for fleeing a peace officer in a motor vehicle in 2002 and controlled substance crime in 2003.

The jury found Duffers guilty of both charges from August 10, 2003, and the court sentenced him to 98 months on the robbery charge and a concurrent 60 months on the firearm charge.  Alleging that the court abused its discretion by allowing the prior convictions for impeachment and that he received ineffective assistance from his trial counsel, Duffers appealed.

D E C I S I O N

1.         Admission of the prior convictions

Evidentiary rulings rest within the district court's discretion and will not be disturbed absent a clear abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  The appellant has the burden of establishing that the district court abused its discretion and that the appellant was thereby prejudiced.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Evidence of a witness's prior convictions is admissible for impeachment if the crime is a felony and the district court determines that the probative value of admitting this evidence outweighs its prejudicial effect.  Minn. R. Evid. 609(a)(1).  In making this determination, the court weighs five factors: 

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of the defendant's testimony, and (5) the centrality of the credibility issue.

 

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).  Failing to properly analyze the Jones factors on the record can be error, but the error is harmless if the application of the factors would have still resulted in allowing the evidence into the record.  State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  The district court admitted the prior felony convictions because they were recent, probative, and not unduly prejudicial:

[T]he convictions are more recent than originally indicated, there isn't any reason why the State should not be allowed to impeach.  These are not crimes similar to those charged.  They are recent in time and their use to impeach the defendant would not unduly prejudice his ability to testify, not with the fact that credibility presumably will be an issue in this case.

 

Duffers argues that the district court failed to properly consider the Jones factors before admitting his prior felony convictions.  He asserts that the convictions provided no impeachment value and improperly influenced the jury given the importance of his testimony and credibility in the case.  Although the district court did not make detailed findings on each of the Jones factors, the court did consider the factors before admitting Duffers's previous felony convictions.  The court determined that because the crimes were recent, were not similar to those with which Duffers was charged, and, because credibility was an issue, prior convictions would be probative.  Where credibility is a central issue, "a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater."  Ihnot, 575 N.W.2d at 587 (quotation omitted).  Further, the admission of the prior convictions did not prevent Duffers from testifying at trial or from arguing to the jury that the convictions had little or no probative value on the issue of credibility.  The district court did not abuse its discretion in ruling that Duffers's prior felony convictions were admissible for impeachment.

2.         Ineffective assistance of counsel

Duffers further argues that he received ineffective assistance of counsel during the plea process because his attorney misinformed him as to the correct presumptive sentence for the charged offenses, and he then rejected a plea offer of a recommended 60-month sentence. 

            To prevail on a claim of ineffective assistance of counsel, the defendant must show that his attorney's representation "‘fell below an objective standard of reasonableness' and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).  A strong presumption exists that counsel's performance "falls within the wide range of reasonable professional assistance."  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).  Generally, a claim of ineffective assistance of counsel is to be made in a postconviction hearing, not on direct appeal.  Roby v. State, 531 N.W.2d 482, 484 n.1 (Minn. 1995).  Although a postconviction hearing is not absolutely required, appellate courts typically reject claims of ineffective assistance of counsel when no record is made in the district court of the reasons for defense counsel's decisions or behavior.  See State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981) (rejecting the defendant's ineffective assistance of counsel claim because of failure to raise below).  Regardless, Duffers's ineffective-assistance-of-counsel claim fails for two reasons.

            Duffers is unable to prove that "but for the counsel's errors, the outcome of the proceedings would have been different."  King v. State, 562, N.W.2d 791, 795 (Minn. 1997).  Had Duffers accepted the plea agreement, he eventually would have learned of the correct presumptive sentence, and, absent substantial and compelling reasons for a downward departure, which have not been shown here, he could not have had the benefit of the plea agreement.  Rather, he would have been entitled to withdraw his plea and have a trial.  See State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988) (stating that if the court rejects an agreement as to sentence, the defendant is entitled to withdraw his plea).  Duffers would then be facing the presumptive sentence of 98 months if he were convicted.  Therefore, Duffers cannot demonstrate that the outcome would have been different had he accepted the plea agreement.

Additionally, in State v. Ferraro, this court determined that the failure of the defendant's counsel to correctly calculate the defendant's criminal-history score did not constitute ineffective assistance of counsel.  403 N.W.2d 845, 848 (Minn. App. 1987).  In that case, the defendant was aware that there were uncertainties about his criminal-history score.  Id.  Here, defense counsel acknowledged that the inaccuracy in the calculation of Duffers's criminal-history score was because, at least partially, of Duffers's failure to initially disclose a previous robbery committed in New York.  Further, Duffers acknowledges that he reviewed his criminal-history record on which it specifically states that it may not "identify all convictions" and "cannot be viewed as accurate." 

            Affirmed.